Sunday, September 30, 2012

With the recent tidal wave of scholarly research into false confessions, informed forensic psychologists are by now tuned in to the phenomenon. We know, for example, that they played a role in one out of four DNA exoneration cases. We are aware of their compelling nature, and can cite examples such as the Central Park Jogger case in which they produced profound miscarriages of justice.

But let's take it one step further. What if, once police elicit a false confession from a suspect, it contaminates everything and everyone in touches -- from the prosecutor, the judge, and even the suspect's own attorney all the way to the fingerprint identification and even, perhaps, the DNA match?

That is the troubling thesis raised by Saul Kassin, a pioneer in the psychological study of false confessions, in an article in the current issue of the American Psychologist.

"Corroboration inflation"

Research shows us that such a contaminating effect is plausible. For example:

Fingerprint experts who were told the suspect had confessed were more likely to change their opinion and make an incorrect match, as compared with experts who were told the suspect was already in custody at the time of the crime. (1)

Polygraph examiners were significantly more likely to opine that an inconclusive chart showed deception when they were told the suspect had confessed. (2)

Such findings may extend to other forensic science that requires subjective judgments, Kassin argues, including comparative analyses of ballistics, hair and fiber, shoeprints, tire tracks, handwriting and even DNA. Although CSI-style TV shows portray such evidence as infallible, a 2009 study by the National Academy of Sciences found widespread errors and bias in the collection and analysis of evidence.

That's not to mention egregious cases of intentional fraud in forensic laboratories that pop up with alarming regularity, such as a case in Boston, Massachusetts currently garnering headlines. There, a lab worker with allegedly bogus credentials as a chemist intentionally fabricated positive drug test results. Over a 9-year period, Annie Dookhan tested an estimated 60,000 drug samples confiscated from about 34,000 criminal defendants. Dookhan reportedly admitted writing reports listing samples as positive for illicit drugs even though she had never tested them; sometimes, "if a sample tested negative, she would take known cocaine from another
sample and add it to the negative sample to make it test positive for
cocaine," according to the Huffington Post's account. Dookhan has been arrested and the lab is temporarily shuttered.

Kassin points to an archival study conducted by he and two colleagues which found that, in DNA exoneration cases, false confessions were often accompanied by other errors, including improper forensic science, mistaken eyewitness identifications and/or the testimony of dishonest informants. Importantly, the confession preceded the other case errors in two-thirds of cases, suggesting it may have had a corrupting influence.

Such findings suggest that the legal system's longstanding assumption that independent sources of evidence provide confirmation of a suspect’s guilt may be wrong. Rather, Kassin writes, "confessions can spawn other incriminating evidence, creating an illusion of corroboration":

"Supported by 100-plus years of basic psychology and the research reviewed herein, confession-induced corroboration inflation challenges a core premise in law. Both pretrial corroboration requirements and a harmless error analysis on appeal rest on the assumption that the corroborating evidence on record is nonredundant and independent of the confession. It now appears that this assumption is often incorrect, that the other evidence may be tainted by confession, and that the appearances of corroboration at pretrial and the sufficiency of evidence on appeal may be more illusory than real."

"Hollywood productions"

Especially pernicious is the frequent situation in which police -- either intentionally or inadvertently -- feed an innocent suspect information that only a guilty party should know. Taking on the aura of a carefully scripted movie production with the confession as the central plot device, the confession is carefully drawn out of the suspect over hours and even days until in its final version it includes vivid details and plausible motivations.

Such an account proves virtually impossible for a judge or a jury to discount. The scripted confession thus becomes the be-all, end-all of the case, contaminating the minds of all who are exposed to it:

POLICE close the investigation, deem the case solved, and overlook exculpatory information, even when (as Richard Leo and his colleagues have shown) the confession is internally inconsistent or contradicted by independent evidence.

PROSECUTORS stubbornly cling to false confession cases, refusing to admit the possibility of their falsity even when DNA testing unequivocally excludes the confessor. (The New York Times Magazinehas more on this phenomenon, describing -- in an article titled "The prosecution's case against DNA" -- the improbable arguments manufactured by prosecutors to explain away negative DNA findings.)

Perhaps most dangerously, even DEFENSE ATTORNEYS succumb to the allure. Individuals who falsely confess are much more likely to be pressured into accepting a guilty plea, which bars future appeals. In an archival study conducted by Kassin and a colleague of 273 DNA exoneration cases, those based on false confessions were three times as likely to involve bad lawyering.

"Taken together," Kassin concludes, "research suggests that judges, juries, and others are doomed to believe the false confessions of innocent people not only because the phenomenon strongly violates common sense but because of corroboration inflation -- a tendency for confessions to produce an illusion of support from other evidence."

All of this suggests that it is essential for courts to allow the testimony of forensic experts who can explain the mechanisms of false confessions, including both what types of police practices are more likely to generate them, and what types of individual vulnerabilities make a person especially prone to cave in under such pressure.

More broadly, this line of analysis suggests the need for changes in police practices, for example an end to the routine practice of lying to suspects about incriminating evidence, and greater government oversight and regulation of police interrogations. Moreover, safeguards on the analysis of supposedly independent evidence, such as evidence technicians being blind to a suspect's confession status, must be implemented in order to ensure that corroborating evidence truly is independent.

The article is: "Why confessions trump innocence." Members of the American Psychological Association may download it for free as part of their member benefits; others may request a copy from the author (HERE).

Tuesday, September 25, 2012

A survey of Sexually Violent Predator cases in eight U.S. states has revealed striking disparities in psychiatric disorders.

Almost two-thirds of the worst-of-the-worst sex offenders in Arizona suffer from pedophilia, and more than half have bad cases of a strange-sounding new disease called "paraphilia not otherwise specified." That is almost double the rate of pedophilia cases in Minnesota (with 35 percent) and, similarly, much higher than the rate of paraphilia not otherwise specified in Wisconsin (37 percent).

Meanwhile, a whopping 94 percent of sex offenders in Illinois suffer from personality disorders, most commonly antisocial personality disorder and an oddball affliction called "personality disorder not otherwise specified." That’s more than double the rate of personality disorders in Wisconsin, where only 41 percent of sex offenders have any personality disorder, mostly antisocial personality disorder.

The cause of the strange outbreaks remains shrouded in mystery. Could the dry climate in the U.S. Southwest produce more pedophiles? Perhaps the Chicago winds lend themselves to an infiltration of antisocial characters? Or, there is always the possibility of circumscribed contagions within the containment facilities for sex offenders in these two geographically discreet states (as in Legionella pneumophila).

Quarantining suspected antisocial virus carriers returning from court

The researchers who discovered the pattern attribute some of the variation to sampling differences. The Florida and Texas samples may have lower rates of mental illness, they write, because those samples included men who were referred for civil commitment but found not to meet criteria. In contrast, the samples from the other states consisted of men who were either civilly committed or on their way to being committed, having lost probable cause hearings in court.

The three surveyed the SVP population in Illinois and compared their results with previously collected data from Arizona, California, Florida, Minnesota, Texas, Washington and Wisconsin. The study appears in the current issue of the International Journal of Offender Therapy and Comparative Criminology.

On average, pedophilia was the most common diagnosis among SVPs, assigned in 49% of cases nationwide. This was followed by paraphilia not otherwise specified (47%), antisocial personality disorder (43%), and personality disorder not otherwise specified (36%). Other sexual paraphilias, or abnormal sexual predilections, such as voyeurism, exhibitionism and sexual sadism, were assigned far less frequently.

Illusory differences?

All kidding aside, I would be willing to bet that there’s not a whole lot of genuine difference among the detained sex offenders in one state as compared with another. If that is so, then the dramatically different rates of diagnosis among the eight states is further evidence that these diagnoses – invoked as a legal basis for involuntary detention – are being applied arbitrarily, even whimsically, and lack sufficient reliability or validity.

Further support for evaluator differences as accounting for the large discrepancies is the fact that rates of these mental disorders are far lower in European countries that do not require mental illness as a basis for preventive detention of dangerous sex offenders. In one German survey, for example, about one-third of men who were civilly detained had molested children yet only 7 percent were diagnosed with pedophilia, suggesting the diagnosis is reserved for those with a demonstrable sexual orientation toward children.

The intriguing question of why forensic evaluators in certain of the 20 U.S. states with Sexually Violent Predator statutes are more likely to assign a given diagnosis than are their counterparts in other states remains a mystery.

The irony of the "NOS" label

With the advent of SVP laws, "NOS" categories of paraphilia (sexual deviance) and personality disorder have steadily gained popularity among sex offender evaluators in the United States.

The irony of assigning the label of "not otherwise specified" as if it is a bona fide mental disorder meriting involuntary detention largely escapes notice. But what an evaluator is actually conceding in assigning that descriptor is that the individual does NOT meet the minimal criteria for any established mental disorder, as catalogued in the American Psychiatric Association’s diagnostic manual, the DSM-IV-TR.

If you flip through the personality disorders section of the DSM, you will notice all manner of symptoms. Stop any random stranger on the street, and he or she is likely to manifest at least a few. For example, consider these:

Angry reactions to perceived attacks on character or reputation (paranoid personality)

Use of physical appearance to draw attention to oneself (histrionic personality)

Envy of others (narcissistic personality)

Feelings of inadequacy (avoidant personality)

Difficulty disagreeing with others for fear of losing their support (dependent personality)

The label of "personality disorder not otherwise specified" is given to individuals who are thought to have some smattering of symptoms of one or more personality disorders, but do not meet the full criteria for any. Most often, this label carries the specifier, "antisocial traits." What this actually means is that the individual does not meet even the minimal criteria for a diagnosis shared by a large proportion -- anywhere from 40 to 60 percent -- of garden-variety criminals in prison. (Of course, to qualify for a personality disorder, the person must suffer distress or impairment in functioning as a result of his symptoms. But, in a tautology, evaluators often say that this condition is met by the mere fact of arrest and incarceration.)

Harkening back to the original justification for SVP laws, the US Supreme Court stressed, in the landmark cases of Hendricks (1996) and Crane (2002), that the goal of civil commitment was to isolate a handful of mentally disordered predators who were qualitatively different from the run-of-the-mill criminal. How a diagnosis that essentially admits that the individual does not even qualify for an established disorder can meet that threshold is beyond me.

Tuesday, September 18, 2012

When I review government reports in sexually violent predator cases, I find that most focus on two things: (1) the person's risk of future sexual violence, and (2) whether that risk is related to a psychiatric disorder.

But this misses a critical piece of the puzzle. In order for a civil commitment based on future danger to be Constitutional under Kansas v. Crane, the former sex offender must also demonstrate a serious difficulty controlling his behavior.

It's understandable that some evaluators shy away from addressing this issue of so-called "volitional control." After all, it is not easy to measure. Far easier to assume a circular tautology, in which a failure to control one's behavior is advanced as evidence of inability to exert self control. But, as the American Psychiatric Association famously noted in a 1983 statement opposing conclusory opinions on volitional control in insanity cases:

"The line between an irresistible impulse and an impulse not resisted is probably no sharper than that between twilight and dusk."

Into this breach jumps psychologist Frederick Winsmann of Boston. In an article in the current issue of Sex Offender Treatment, he proposes a model for how to assess volitional control in sexually violent predator evaluations.

Winsmann theorizes that poor self control emanates from two related processes: (1) behavioral impulsivity, and (2) impaired decision-making. He recommends that evaluators incorporate screening measures that tap into these two processes, such as the Barratt Impulsiveness Scale and tests of executive (frontal lobe) functioning like the Wisconsin Card Sorting Test or the Iowa Gambling Task.

While this approach is a welcome step in the right direction, it must be recognized that tests of impulsivity and frontal lobe functioning are just indirect measures of the volitional impairment that is theorized to underlie some sexual offending.

Indeed, Winsmann stresses that these tests should be approached as part of a larger idiographic framework of understanding the person as a unique individual, and that poor test performance does not in and of itself establish volitional impairment. For example, scores may be lowered by poor cognitive abilities. (I have also seen cognitively normal people with fine self control do poorly on the Wisconsin Card Sorting Test due to high anxiety.)

Sunday, September 16, 2012

This blog doesn't focus a lot on marketing matters, but I thought I'd pass along a link to a new overview that's packed with practical tips. Authored by Bill Reid, a prominent forensic psychiatrist and past president of the American Academy of Psychiatry and the Law (AAPL), it was published in the Journal of Psychiatric Practice and is available for free online. It's most useful for those just starting a forensic practice, but has a few reminders for more seasoned practitioners as well, including regarding the Internet. The tips are as relevant to psychologists and other forensic mental health practitioners as to psychiatrists, the target audience. Here's the summary abstract:

William H. Reid, MD, MPH, fisherman

"Marketing" refers to the entire process of bringing a product or service to the public and creating a demand for it. It is not simply advertising. There are good and bad ways to market one’s practice, and some that are distasteful or even unethical. The quality and credibility of your work are your most important marketing tools. Reputation and word-of-mouth among attorneys is the largest referral source for most private forensic practitioners. Your professional and business practices, the quality of your staff and their interactions with clients, and your day-to-day availability are all critical. The Internet is important for some practitioners. Practice websites are inexpensive, but they should be carefully constructed and avoid appearing sensational or overly self-serving. Research the basics of websites and website traffic, and don’t expect great results for the first year or so. A Web
consultant may be helpful, but avoid those who charge lots of money or make grand promises. Paying for advertisements, listings, or brochures is rarely fruitful. Your primary marketing targets are likely to be attorneys, but may include courts and certain government agencies; clinicians are not usually a major referral source. Patients and potential litigants themselves are off-limits; marketing to them is generally unethical.

Tuesday, September 11, 2012

Want to hear from forensic leaders on new developments in the field, but don't have the time (or extra money) to travel to do so? No worries. On Sept. 29, the New York State Psychological Association's annual forensic conference -- featuring forensic leaders Tom Grisso and Randy Otto -- will be available as a live Webinar.

In the morning keynote address, Thomas Grisso of the University of Massachusetts Medical School will provide guidance on forensic report writing based on his recent research project.

Later in the day, Randy Otto of the University of South Florida will address "Learning Needed to Become Competent as a Forensic Psychologist."

Although Webinar participants won't be able to imbibe at the wine social at St. John's University in Manhattan, they will get to listen in on the afternoon conversation hour between attendees and presenters. They will also hear one of the three mid-day breakout sessions (most likely the one on criminal court report writing, I am told).

The cost is $50reduced to $35 for non-NYSPA members; $25 for students with proof. Unfortunately, remote participants will not earn continuing education credits. Which kind of makes sense, as there is no way to monitor attendance.

Sept. 30: Child custody moot court

The following day, Sept. 30, the Queens campus of St. Johns will feature a training designed for professionals interested in learning more about conducting child custody evaluations. As with the previous day's training, this one will also be available to remote listeners.

"The Court is in Session: Psychologists on the Stand" will address effective and ethical expert testimony in the child custody context. Forensic psychologists, attorneys and a judge will then enact a simulation experience, or moot court, followed by a postmortem panel discussion. This event is co-sponsored by the Forensic Division of the New York State Psychology Association and the Nassau County Psychological Association.

It's exciting to see forensic programs offering Webinar access, which will make trainings more accessible to professionals in distant locations or those who do not want to spend hundreds of dollars on airfare and lodging to attend a training.

Monday, September 3, 2012

As always, there are lots of developments on the sex offender front. I haven't had time to blog about each individually, so here are a few brief reports with links.

State and federal civil commitment continues to unravel

Piggy-backing off of USA Today's recent expose, Prison Legal News takes an in-depth look at the status of the federal sex offender civil commitment process. As I’ve reported here on various occasions, federal judges in North Carolina are being thoughtful in their application of the “Sexually Dangerous Person” law (18 USC 4248). Rather than simply rubber-stamping government reports as truth, the judges “have shown a willingness to carefully sift through the facts” and the relevant law in each individual case.

Increasingly, federal judges are agreeing with the findings of private psychologists and defense experts in civil commitment cases, which has put the DOJ in the unusual position of losing more contested hearings than it wins. Courts have repeatedly found that the federal government failed to meet its burden of proof that prisoners certified for civil commitment are sexually dangerous or have a high risk of reoffending, as required by 4248.

Gratifying for independent forensic professionals is the fact that judges are finding outside psychologists more objective and reliable than psychologists on the payroll of the Board of Prison Terms, whose reports are “sometimes questionable.” Notes PLN reporter Derek Gilna, the judges are “consistently realizing that independent psychologists are “more objective, thorough and nuanced in their observations and findings.”

Despite its string of losses, the federal government is still holding ex-convicts for years after they complete their prison terms, pending civil commitment hearings. That’s “a chilling reminder of the power of the DOJ to arbitrarily deprive prisoners of their freedom,” writes Gilna.

Challenge to Minnesota commitment gains ground

Meanwhile, another federal judge has issued a court order mandating changes in the civil commitment system in Minnesota, after detainees brought a class action challenge. That state’s civil detention program is infamous around the world for its failure to release inmate “patients” even after years of sex offender treatment; it was on that basis that Britain recently rejected a U.S. bid to extradite an accused child molester.

Chief U.S. Magistrate Judge Arthur Boylan [has] ordered state Human Services Commissioner Lucinda Jesson to convene a task force of experts to recommend options less restrictive than the state's prison-like treatment centers and to suggest changes in how offenders are selected for civil commitment, as well as how they might earn release from the program. The order came during pretrial discussions in a class-action lawsuit brought by patients who argued that their indefinite detention after completing their prison sentences is unconstitutional. Critics of the Minnesota Sex Offender Program (MSOP) hailed Boylan's order as an unprecedented and significant step toward changing a system that has been a magnet for controversy since its creation in 1994 with the construction in Moose Lake of a sprawling campus surrounded by razor wire.

I’ve been meaning to blog about this topic; I’ve got a half-finished post stashed away somewhere. But now I don’t have to: David Ley has written a whole book about it (proving that sometimes procrastination pays off).

He exposes the subjective values embedded in the concept, as well as the significant economic factors that drive the label of sex addiction in clinical practice and the popular media. Ley outlines how this label represents a social attack on many forms of sexuality--male sexuality in particular--as well as presenting the difficulty this label creates in holding people responsible for their sexual behaviors. Going against current assumptions and trends, Ley debunks the idea that sex addiction is real. Instead, he suggests that the high-sex behaviors of some men is something that has been tacitly condoned for countless years and is only now labeled as a disorder as men are being held accountable to the same rules that have been applied to women. He suggests we should expect men to take responsibility for sexual choices, rather than supporting an approach that labels male sexual desire as a "demonic force" that must be resisted, feared, treated, and exorcised.

In a review in the online newsletter of the influential Association for the Treatment of Sexual Abusers (ATSA), David Prescott calls the book indispensable for individuals engaged in the assessment and/or treatment of sex offenders, because "our clients typically do not have the luxury of selecting a treatment provider and can quickly find themselves in legally tenuous situations should they hold different beliefs than their therapist."

Study: Sexting not risky or psychologically problematic

Here’s another myth-buster: Sexting is not associated with sexually risky behavior or other problems.

That's according to a study published online in the Journal of Adolescent Health. More than four out of ten youngsters in a large U.S. sample of 3,447 had engaged in sexting, the researchers found. There was no association between sexting and either psychological well-being or engagement in sexual risk behaviors. The study flies in the face of alarmist hype over this increasingly ubiquitous phenomenon of the electronic age.

Sex offender recidivism through a therapeutic jurisprudence lens

Legal scholars Michael Perlin and Heather Cucolo of New York Law School have turned their focus to the effects of sex offender laws on rehabilitation and community reintegration. Their new article, published in the fall issue of the Temple Political and Civil Rights Law and also available online, suggests public policy changes that would minimize re-offense rates while still protecting human rights. As summarized in the abstract:

[The article] highlights the failure of community containment laws and ordinances by focusing on (1) the myths/perceptions that have arisen about sex offenders, and how society incorporates those myths into legislation, (2) the lack of rehabilitation offered to incarcerated or civilly committed offenders, resulting in inadequate re-entry preparation, (3) the anti-therapeutic and inhumane effect of the laws and ordinances created to restrict sex offenders in the community, and (4) the reluctance and resistance of courts to incorporate therapeutic jurisprudence in seeking to remediate this set of circumstances. It concludes by offering some modest suggestions, based on the adoption of a therapeutic jurisprudence model of analysis.

The only odd thing about the article is that its title is not derived from Bob Dylan lyrics, as Perlin's articles usually are. That must have been the influence of his co-author.

Alarmist study amps up sex offender fears

At the opposite end of the ideological spectrum, here's yet another piece of alarmist reporting:

"Nearly one in six convicted sex offenders is using sophisticated techniques invented by identity thieves" in order to escape registration requirements, blurts a news story that received quite a bit of press a bit ago.

My first reaction: ONLY one-sixth? After all, how many of us would want to wear a scarlet letter everywhere we went, a letter that effectively banished us from housing, jobs, school, community -- basically, from any kind of normal life.

Really?! If he cannot figure it out without further digging, he must not know how to walk in another's shoes. We’re talking about onerous laws that severely restrict where ex-offenders can live and require them to broadcast the addresses of any employment or school they attend. Laws that incite the prurient interests of nosy neighbors. Laws that invade the privacy of loved ones. Laws that have even led to a string of vigilante murders. People on these registries are motivated by the desire to protect family members, shield themselves from nosy neighbors, and get jobs.

Even the New York Daily News, certainly no sympathizer toward ex-offenders, notes in its coverage of the study that the various attempts to evade scrutiny "don't mean the offenders aren't checking in regularly with their parole officers. Actual absconder rates -- the percentage of sex offenders who get released and disappear -- are extremely low."

Ironically, as highlighted in the Perlin and Cucolo article referenced above, a growing body of empirical research suggests that registration laws do nothing to protect the public or reduce recidivism. Indeed, they may foster recidivism, by isolating former sex offenders and destroying all hope of leading productive, law-abiding lives.

Frank Kuni, New Jersey sexual registry entry

Meanwhile, what was the heinous crime of the so-called “poster child” for violating the registration rules -- the worst violator they could find?

Frank Kuni of New Jersey did not commit a new sex crime. Rather, he changed his name in order to land a job. With the US Census Service, no less. In other words, as one article put it, he had the audacity to try to "slip back into society" and become a productive citizen.

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Karen Franklin, Ph.D. is a forensic psychologist and adjunct professor at Alliant University in Northern California. She is a former criminal investigator and legal affairs reporter. This blog features news and commentary pertaining to forensic psychology, criminology, and psychology-law. If you find it useful, you may subscribe to the newsletter (above). See Dr. Franklin's website for more information.

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